Citation Nr: 0605090
Decision Date: 02/22/06 Archive Date: 03/01/06
DOCKET NO. 03-03 418 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to service connection for a low back disability.
REPRESENTATION
Appellant represented by: Kentucky Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. Pomeranz, Counsel
INTRODUCTION
The appellant had active military service from March 1974 to
September 1976.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of an April 2002 rating action by the
Department of Veterans Affairs (VA) Regional Office (RO)
located in Louisville, Kentucky.
FINDINGS OF FACT
1. Slight rotoscoliosis of the lumbar spine was noted on the
appellant's February 1974 enlistment examination report.
2. The preexisting rotoscoliosis of the lumbar spine did not
increase in severity during service.
3. There is no competent medical evidence showing that the
appellant's current spondylolisthesis at L5-S1 and
degenerative disc disease of the lumbosacral spine are
attributable to military service.
CONCLUSIONS OF LAW
1. Pre-existing rotoscoliosis of the lumbar spine was not
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1111, 1131, 1137, 1153, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.306 (2005).
2. A low back disorder, to include spondylolisthesis at L5-
S1 and degenerative disc disease of the lumbosacral spine was
not incurred in active military service, nor may degenerative
disc disease be presumed to have been so incurred.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000
In November 2000, the Veterans Claims Assistance Act of 2000
(VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005).
Regulations implementing the VCAA are applicable to the
appellant's claim. 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326 (2005).
With respect to VA's duty to notify, the RO sent the
appellant a letter in February 2002, prior to the initial
rating decision with regard to the issue on appeal, in which
the appellant was notified of the types of evidence he needed
to submit, and the development the VA would undertake. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was told
what information and evidence was needed to substantiate a
claim for service connection. The letter specifically
informed the appellant what was needed from him and what VA
would obtain on his behalf. For example, the letter told him
that VA would help obtain medical records, employment
records, or records from other Federal agencies. The
appellant was informed that he was responsible for providing
sufficient information to VA so records could be requested.
In addition, the Board observes that the August 2002
statement of the case provided the appellant with the text of
the relevant portions of the VCAA, as well as the
implementing regulations. The Board further notes that there
is no indication that there is additional evidence that has
not been obtained and that would be pertinent to the present
claim. The appellant has also been notified of the
applicable laws and regulations pertinent to his service
connection claim. Moreover, the appellant has been afforded
the opportunity to present evidence and argument in support
of the claim, including at a personal hearing. Id. Thus,
VA's duty to notify has been fulfilled.
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate a claim. 38 C.F.R.
§ 3.159(c). The duty to assist also includes providing a
medical examination or obtaining a medical opinion when such
is
necessary to make a decision on the claim. In this regard,
the Board notes that in August 2005, the appellant underwent
a VA examination which was pertinent to his service
connection claim. The Board further observes that in this
case, there is no outstanding evidence to be obtained, either
by VA or the appellant. The RO has obtained all relevant VA
and private medical records identified by the appellant.
Consequently, given the standard of the new regulation, the
Board finds that VA did not have a duty to assist that was
unmet. The Board also finds, in light of the above, that the
facts relevant to this appeal have been fully developed and
there is no further action to be undertaken to comply with
the provisions of the regulations implementing the VCAA.
Therefore, the appellant will not be prejudiced as a result
of the Board proceeding to the merits of the claim. See
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
Finally, to the extent that VA has failed to fulfill any duty
to notify and assist the appellant, the Board finds that
error to be harmless. Of course, an error is not harmless
when it "reasonably affect(s) the outcome of the case."
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998).
In this case, however, as there is no evidence that any
failure on the part of VA to further comply with the VCAA
reasonably affects the outcome of this case, the Board finds
that any such failure is harmless. See also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
II. Analysis
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§§ 1110, 1131; 38 C.F.R. § 3.303. Direct service connection
requires a finding that there is a current disability that
has a definite relationship with an injury or disease or some
other manifestation of the disability during service.
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992). Service connection
may also be granted on the basis of a post-service initial
diagnosis of a disease, where the physician relates the
current condition to the period of service.
Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In such
instances, a grant of service connection is warranted only
when "all of the evidence, including that pertinent to
service, establishes that the disease was incurred during
service." 38 C.F.R. § 3.303(d). For certain chronic
disorders, including arthritis, service connection may be
granted if the disease becomes manifest to a compensable
degree within one year following separation from service. 38
U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309.
A veteran is presumed in sound condition except for defects
noted when examined and accepted for service or where there
is clear and unmistakable evidence that the disability
existed prior to service and was not aggravated by service.
38 U.S.C.A. § 1111. A pre-existing disease will be
considered to have been aggravated by active service where
there is an increase in disability during service, unless
there is a specific finding that the increase in disability
is due to the natural progression of the disease.
38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.
Rotoscoliosis of the Lumbar Spine
The appellant's service medical records show that in February
1974, the appellant underwent an entrance examination. At
that time, the appellant's spine and other musculoskeletal
system were clinically evaluated as "abnormal." It was
noted that the appellant had a slight rotoscoliosis of the
lumbar spine, with the left hip slightly lower, which was not
considered disqualifying. Thus, with respect to the
appellant's rotoscoliosis of the lumbar spine, since this was
shown at the time of the appellant's February 1974 entrance
examination, the presumption of soundness is rebutted.
38 U.S.C.A. § 1111.
The evidence of records demonstrates that the preexisting
rotoscoliosis of the lumbar spine was not aggravated by
service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. With the
exception of the finding of rotoscoliosis of the lumbar spine
at the time of the appellant's February 1974 entrance
examination, the remainder of the appellant's service medical
records are negative for any findings, treatment, or
diagnosis of a low back disability. Although the records
show that in response to the question as to whether the
appellant had ever had or if he currently had recurrent back
pain in a March 1975 periodic physical examination, the
appellant responded "yes," nevertheless, clinical
evaluation of his spine was normal. In addition, the
appellant's separation examination conducted in September
1976, found the appellant's spine clinically normal and the
appellant noted that he did not have recurrent back pain.
Most importantly, in the appellant's August 2005 VA
examination the examining physician opined that no worsening
of the appellant's rotoscoliosis of the lumbar spine occurred
during service.
As the evidence of record shows that the appellant's
rotoscoliosis of the lumbar spine preexisted service and
uncontroverted medical evidence that it was not aggravated
thereby, the preponderance of the evidence is against the
veteran's claim and the doctrine of reasonable doubt is not
for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990). Accordingly, service connection for rotoscoliosis of
the lumbar spine is not warranted.
Spondylolisthesis at L5-S1 and Degenerative Disc Disease of
the Lumbosacral Spine
In this case, the fact that rotoscoliosis of the lumbar spine
preexisted service does not establish that all low back
pathology preexisted service or that other pathology was not
present during service. The record establishes that the
appellant currently has spondylolisthesis at L5-S1 and
degenerative disc disease of the lumbosacral spine and must
be separately addressed.
In the appellant's August 2003 personal hearing at the RO,
the appellant testified that while he was in the military, he
was in a "track vehicle accident." The appellant stated
that he was riding in an "armored personnel carrier" with
three other individuals when the personnel carrier
accidentally ran into the rear end of a tank. According to
the appellant, the impact threw all of them against the
"bulkhead." The appellant reported that although medics
arrived and provided
treatment, he did not receive any treatment because he
thought he was "okay." However, the appellant stated that
after the accident, he developed low back pain. The
appellant maintained that following his discharge, he
continued to experience chronic low back pain.
After reviewing the evidence of record, the Board finds that
the appellant's currently diagnosed spondylolisthesis at L5-
S1 and degenerative disc disease of the lumbosacral spine are
not related to his military service. 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. § 3.303. In this regard, the appellant's
service medical records, to include the September 1976
separation examination report, are negative for any
complaints or findings of spondylolisthesis at L5-S1 and/or
degenerative disc disease of the lumbosacral spine.
Moreover, arthritis of the lumbosacral spine was not shown
within one year after service discharge, and therefore, may
not be presumed to have been incurred in the appellant's
active military service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137; 38 C.F.R. § 3.307, 3.309. In the instant case, the
first evidence of any treatment for a low back disability was
in April 2000, approximately 23 years after the appellant's
separation from the military. In this regard, VA Medical
Center outpatient treatment records, from April 2000 to
September 2003, show that in April 2000, the appellant had a
magnetic resonance imaging (MRI) taken of his lumbosacral
spine. The impression was anteriorlisthesis at L5 on S1;
severe bilateral foraminal narrowing was present from the
anterior listhesis. In addition, x-rays taken in April 2002
of the appellant's lumbosacral spine were interpreted as
showing chronic spondylolysis, with 15 millimeters
spondylolisthesis of L5 and severe degenerative disc disease
at the same level. There was arthrosis in the lower lumbar
apophyseal joints and hips. In May 2002, the appellant had
an MRI taken of his lumbar spine which was interpreted as
showing Grade II anterolisthesis of L5 on S1, with uncovering
of the disc/pseudodisc bulging. There was no significant
central canal stenosis. However, there was bilateral
moderate to severe foraminal stenosis, right greater than
left.
Private medical treatment records show that in May 2000, a
MRI scan showed that the appellant had Grade III
spondylolisthesis, with posterior bulging of the disc at the
L5-S1 level, and possibly at the L4-L5 level as well. The
MRI scan was read as anterolisthesis of L5 on S1, pseudo disc
herniation at the level of the listhesis, though a true disc
herniation was not seen. Severe bilateral foraminal
narrowing was present from the anterior listhesis. In
addition, x-rays of the appellant's lumbosacral spine were
interpreted as showing spur formation in the lumbar spine,
especially at L4-L5, and almost complete collapse of the L5-
S1 disc space, with anterolisthesis, late Grade II, L5 on S1.
There was almost a retrolisthesis of L4 on L5, Grade I.
Following a review of the appellant's MRI report and x-rays,
the examining physician diagnosed the appellant with a
significant spondylolisthesis, without neurological
involvement.
In October 2003, the RO received records from the Social
Security Administration, which included a Disability
Determination and Transmittal Report, dated in May 2003. The
SSA Disability Determination and Transmittal Report shows
that the appellant was awarded Social Security disability
benefits for ankylosing spondylitis and other inflammatory
spondylopathies, and osteoarthrosis and allied disorders.
In August 2005, the appellant underwent a VA examination. At
the time of the examination, the appellant had x-rays taken
of his lumbosacral spine. The x-rays were interpreted as
showing chronic spondylolysis, with severe grade III
spondylolisthesis at L5-S1. Following the physical
examination and a review of the appellant's x-rays, including
past MRI and x-ray reports, the examiner diagnosed the
appellant with spondylolisthesis at L5-S1, with no evidence
of radiculopathy. The examining physician opined that it was
"less likely than not" that the appellant's current low
back disability of spondylolisthesis was related to the
slight rotoscoliosis of the lumbar spine noted in the
appellant's February 1974 entrance examination. The examiner
noted that the opinion was based on the fact that there was
nothing in the evidence of record to substantiate the
appellant's claim of an in-service injury to the low back.
The examiner further indicated that there was
nothing in the evidence of record of any back condition from
the time of the appellant's military discharge until he
presented for care in May 2000.
In this case, due consideration has been given to the
appellant's statements that his low back disability,
currently diagnosed as spondylolisthesis at L5-S1 and
degenerative disc disease of the lumbosacral spine, was
incurred during his period of active military service.
Although the appellant's lay statements are competent as to
the occurrence of the accident involving the personnel
carrier, the statements are not competent evidence to
establish his back was injured as a result of such an
accident or to establish the etiology of his current
diagnosis. Medical diagnosis and causation involve questions
that are beyond the range of common experience and common
knowledge and require the special knowledge and experience of
a trained physician. Because he is not a physician, the
appellant is not competent to make a determination that his
currently diagnosed spondylolisthesis at L5-S1 and
degenerative disc disease of the lumbosacral spine, are the
result of his military service or any incident therein over
two decades ago. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).
As such, the fact remains that there is no competent medical
evidence on file linking the appellant's currently diagnosed
spondylolisthesis at L5-S1 and degenerative disc disease of
the lumbosacral spine, to service or to any incident of
service, despite his assertion that such a causal
relationship exits. This lack of cognizable evidence is
particularly dispositive as the first medical evidence of
record for treatment for symptomatology of these disorders is
approximately 23 years after his period of service had ended.
See cf. Mense v. Derwinski, 1 Vet. App. 354 (1991).
As there is no evidence of spondylolisthesis at L5-S1 and/or
degenerative disc disease of the lumbosacral spine in
service, or arthritis within one year subsequent to service
discharge, and there is no evidence which provides the
required nexus between military service and spondylolisthesis
at L5-S1 and/or degenerative disc disease of the lumbosacral
spine, the preponderance of the evidence is against the
appellant's claim, and the doctrine of reasonable doubt is
not for application. Gilbert, 1 Vet. App. at 49.
Accordingly, service connection for a low back disorder, to
include spondylolisthesis at L5-S1 and degenerative disc
disease of the lumbosacral spine is not warranted.
ORDER
Service connection for a low back disorder, to include
rotoscoliosis of the lumbar spine, spondylolisthesis at L5-
S1, and degenerative disc disease of the lumbosacral spine is
denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs